Editor's Note :

We are expecting one or more decisions in argued cases tomorrow at 10 a.m. We will be live-blogging the opinion(s) as they are released. However, there is no live blog of tomorrow’s oral argument in King v. Burwell. We will have coverage of that argument as soon as possible after it is finished; the transcript should be available tomorrow afternoon, and the audio will be available on Friday. Wednesday's live blog will be available here.

Utah and same-sex marriage: Issues on appeal

Posted Thu, April 10th, 2014 9:58 pm by Lyle Denniston

NOTE TO READERS: The following post is based on the audiotape of the hour-long hearing Wednesday in the U.S. Court of Appeals for the Tenth Circuit in Denver in the case of Kitchen v. Herbert, on the constitutionality of Utah’s ban on same-sex marriage. The author of this post was not in the courtroom. The post explores the issues raised by Circuit Judges Jerome A. Holmes, Paul J. Kelly, Jr., and Carlos F. Lucero, without identifying the judges individually. The audiotape can be accessed on the main page of the Tenth Circuit’s website. A written transcript will be available soon.

Analysis

The first hearing by a federal appeals court since the Supreme Court’s ruling last June on same-sex marriage, and the first in the wake of a string of federal trial judges’ rulings striking down state bans on such marriages, pointed strongly on Wednesday toward the issues that seem sure to shape how the controversy will unfold from this point on.

The three judges on the panel raised questions that ranged from the impact on the same-sex marriage issue of the Supreme Court’s 1967 decision (Loving v. Virginia) striking down a ban on mixed-race marriages, to uncertainty about whether there is even a genuine case that the judges have authority to decide.

If there was one dominant issue, though, it appeared to be the rigor of the test the appeals courts will use to judge the constitutionality of same-sex marriage bans — if they do reach that issue on the merits. One judge bluntly told the attorneys Wednesday that if the test is any stronger than “rational basis” — the easiest test to meet — then Utah’s marriage ban would be struck down, but that the ban would survive that easier standard.

If the Tenth Circuit is to move to a higher standard, it would have to cast aside or draw a distinction from a ruling that it had issued in 2008, in the case of Price-Cornelison v. Brooks. There, the Tenth Circuit firmly declared that claims of discrimination based on sexual orientation are to be judged only on a “rational basis” test. The Price-Cornelison precedent was explored at some length Wednesday.

Some federal judges — and the U.S. Court of Appeals for the Ninth Circuit — have interpreted the Supreme Court’s ruling last Term in United States v. Windsoras supporting the use of a “heightened standard” of review in gay rights cases. In striking down a key part of the federal Defense of Marriage Act, the Supreme Court did not indicate what standard it had used and, indeed, it has never said explicitly what test is the controlling one. (Another appeals court, the U.S. Court of Appeals for the Second Circuit, adopted the higher standard in the Windsor case before that lawsuit went to the Supreme Court.)

On Wednesday, the first point raised by the lawyer for Utah, Gene Schaerr of Washington, D.C., stressed the standard-of-review issue and the Tenth Circuit’s 2008 precedent applying “rational basis.” But that produced the first question from the bench, on whether discrimination in marriage on the basis of sexual orientation was any different from discrimination in marriage on the basis of race, as in the Loving case. Treating same-sex couples differently, the judge said, was just “another classification.”

The Loving precedent also came into the discussion in an exchange about whether marriage is “a fundamental right.” After attorney Schaerr said that ruling was only about racial classifications in marriage, the judge focusing on that precedent said the Supreme Court had never spoken of marriage as a fundamental right only in narrow categories based on the identity of the spouses. “Why does it matter who’s claiming the right? It’s a fundamental right,” the judge commented.

When Schaerr spoke of the Windsor decision as being focused primarily on the power of states to decide who may marry, a judge retorted that “I am not persuaded that your view [of the decision] prevailed, that federalism was the only touchstone of that case.”

As Schaerr continued to press the point that the court had to decide what the definition of marriage is, and who could make that decision, one of the judges said that was not the issue; rather, the judge said, the issue is “whether the state of Utah may deny a same-sex couple marriage without violating the fundamental principles” of equality and due process. That, the judge noted, was the way the federal trial judge in Salt Lake City had framed the issue in nullifying Utah’s ban. But another judge said the Tenth Circuit was reviewing this case independently of the trial judge’s approach.

One of the judges turned the questioning toward the powers that Utah’s governor and attorney general have over the marriage issue — a line of inquiry that soon became clear was an inquiry into whether the proper parties were before the Tenth Circuit. The clerks who actually issue marriage licenses are not involved in the case, that judge noted.

That prompted one of the judges to question how state officials were going to treat the children in families with same-sex parents who were married outside of Utah. How, the judge asked Schaerr, would denying recognition of such marriages square with Utah’s argument that marriage is a “child-centric institution”?

When Schaerr said the Utah ban would not allow such recognition, that judge said “doesn’t that stigmatize these children?” Schaerr said “there is no question that there have to be trade-offs.” He then turned to the state’s interests in maintaining the ban.

The hearing devoted some time to exploring the sociological studies about the effect on children of having same-sex parents, with Schaerr suggesting that those studies show that, if lesbians marry and have children, without a father figure in the family, the boys in the family are likely to grow up with no proper “expression of maleness” as a model and will turn instead to alternative messages about aggression, physical strength, and sexual prowess.

Schaerr conceded that the scientific studies may be “inconclusive,” but he argued that states were entitled to pass laws on the basis of legislators’ perception of the risk of allowing something as new as same-sex marriage.

The lawyer for the same-sex couples challenging Utah’s ban, Peggy A. Tomsic of Salt Lake City, had barely started when a judge asked her what standard of review the court of appeals should use. She argued for “heightened scrutiny,” but that led the judge to bring up the circuit precedent in the Price-Cornelison case.

When Tomsic tried to argue that the standard of review was not really at issue in that case, one of the judges retorted that the panel might disagree with that interpretation. That judge then commented that, if the court were to use the “rational basis” standard, it would not be enough for Tomsic to say that she disagreed with the Utah ban. “That does not make it irrational,” the judge commented.

A moment later, one of the other judges remarked that “this all is going to turn on the standard of review….If we’re under any heightened level of scrutiny, they [Utah] lose.” But, he added, “if we’re under rational basis, I don’t see how you win.”

When Tomsic’s argument turned to a discussion of the meaning of the Windsor decision, one judge told her bluntly that the Court had ruled as it did because the federal government was interfering with state control of who can marry. “Our reading of Windsor is a bit broader than that,” the couples’ lawyer replied, saying the decision was actually based upon a violation of the rights of equality and due process.

Tomsic was questioned closely when she started discussing whether Utah’s ban on same-sex marriage was a reflection of “animus” toward gays and lesbians, seeking only to exclude them “based on a single trait.” One judge said that “animus” was not an issue in the case, and he found it “hard to see” any evidence of that. All that Utah had done, he added, was to validate what had been “the historic practice forever” of limiting marriage to a union between a man and a woman.

When the lawyer tried to argue that she was not using the word “animus” to suggest that Utahans were “mean-spirited,” one of the judges objected, repeating the suggestion that Utah had sought only to protect what had been historical practice “for eons.” A moment later, he added: “We don’t have ‘animus’ here.”

That judge also commented that the Utah ban was only an expression of “public policy” dealing with “something that was for the good of the whole.” Another judge promptly interrupted, asking rhetorically: “Public policy can overrule constitutional rights?” Tomsic said no.

The judges ended the hearing without any indication of when they would rule.

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. On Tuesday the Court announced its decision in Direct Marketing v. Brohl. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]